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courts. is is a common approach, with the Australian position, for instance,
mirroring that of the United Kingdom, where protection of a work is free and
automatic upon its creation and diers from the position in the United States,
where work has to be registered to be actionable. While some divergences may be
found, Australian copyright law largely replicates the frameworks in place within
the United States and United Kingdom. e copyright term is shorter than these
jurisdictions in Australia, being the creator’s life plus 50 years, whereas the United
Kingdom has a term of 70 years from the end of the calendar year in which the last
remaining author of the work dies for literary works. As co-signatories to the Berne
Convention, for the most part, foreign copyright holders are also sheltered in juris-
dictions including the United Kingdom and Australia.
e 1988 Act catalogues the copyright holder’s sole rights “to copy, issue copies
of the work to the public, perform, show or play in public and to make adaptations.”
An ephemeral reproduction that is created within a host or router is a reproduction
for the intention of copyright law. ough there appears to be no special right to
broadcast a work over a network, a right is granted in Section 16(1)(d) to transmit the
work or incorporate it into a cable program or oering. e notion of “broadcast” is
limited to wireless telegraphy that may be received by the public. Interactive services
are explicitly debarred from the designation of “cable program service” (S.7 (2)(a)).
A proviso has been made for an individual as an infringer of the act in the event of
remote copying. is is dened to encompass transmission or broadcasts of a copy-
righted work using a telecommunications system where the individual should have
reason to suppose that another party who views or otherwise receives the transmis-
sion will create an infringing copy.
e act includes provisions that inict both criminal penalties and civil remedies
for the creation, importation, or commercial dealing in items or services intended
to thwart technological controls that protect or otherwise secure copyright works.
Sanctions have also been included to cover any unauthorized interference with elec-
tronic rights management controls that are designed to secure a work against the
unauthorized distribution of copyright works whose rights management controls
have been interfered with or otherwise corrupted.
Liability is also possible for secondary infringement, including importing and
distributing infringing copy prepared by a third party. e extent of the exclusive
rights of the copyright holder is large enough to include an organization that uti-
lizes or consciously allows another into its system in order to store and disseminate
unauthorized reproductions of copyrighted works. is situation would create the
risk of civil action. A contravention could constitute a criminal oense if a com-
mercial motivation for copyright infringement could be demonstrated.
e Australian High Court decision in Telstra Corporation Ltd. v. Australasian
Performing Rights Association Limited
imposed primary liability for copyright
infringement on Telstra in respect of music broadcast over a telephone “hold” sys-
tem. A large part of the decision concentrated on the denition of the diusion
right in Australia. It follows from this decision that if an ISP broadcasts copyrighted
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works in the general course of disseminating other materials through the Internet,
that diusion is a “transmission to subscribers to a diusion service” as dened by
the Australian Copyright Act.
In the Australian case of Moorhouse v. University of New South Wales, a writer
initiated a “test case” asserting copyright infringement against the University of
New South Wales. e university had provided a photocopier for the function
of allowing the photocopying of works held by the university’s library. A chapter of
the plainti’s manuscript was copied by means of the photocopier. e library had
taken rudimentary provisions to control the unauthorized copying. No monitoring
of the use of the photocopier was made. Further, the sign located on the photo-
copier was unclear and was determined by the Court to not be “adequate.” e
Australian High Court held that, while the university had not directly infringed
the plainti’s copyright, the university had sanctioned infringements of copyright
in that the library had provided a boundless incitement for its patrons to duplicate
material in the library.
Mann and Belzley hold that the least cost intermediary liable is likely to be upheld
under existing United Kingdom, United States, and Australian law. e positions
held by the court in Telstra v. Apra and Moorhouse v. UNSW dene the necessary
conditions to detail public dissemination and infringement through a sanctioned
arrangement. e public dissemination of music clips on a Web site could be seen as
being analogous to the copying of a manuscript with the ISP’s disclaimer being held
as an inadequate control. It is clear that the provision of technical controls, monitor-
ing, and issuing of take down notices by the ISP would be far more eective at con-
trolling copyright infringement than enforcing infringements against individuals.
Several cases have occurred in the United States involving ISPs or other ser-
vice providers that hosted copyrighted material made available to those accessing
the site. A signicant decision was made in Religious Technology Center v. Netcom
On-Line Communication Services, Inc. e case involved the posting of information
online, which was disseminated across the Internet. e postings were cached by
the hosting provider for several days and robotically stored by Netcom’s system for
11 days. e court held that Netcom was not a direct infringer in summary judg-
ment. It was held that the simple fact that Netcom’s system mechanically created
transitory duplicates of the works didn’t constitute copying by Netcom. Arguments
that Netcom was vicariously liable were furthermore discarded. e Electronic
Commerce (EC Directive) Regulations 2002 warrants that the equivalent outcome
would be expected in the United Kingdom.
e U.S. Congress has acted in response with a number of statutes by and large
that are intended to protect the intermediary from the threat of liability. e Digital
Millennium Copyright Act (DMCA) envelops the possibility of liability from copy-
right liability. e DMCA is prepared such that it exempts intermediaries from
liability for copyright infringement while the intermediaries adhere to the measures
delineated in the statute. ese in the main compel them to eliminate infringing
material on the receipt of an appropriate notication from the copyright holder.
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In the United Kingdom, “fair dealing” exceptions are a great deal more restricted
than those in the United States. Netcom, if tried in the United Kingdom, would
have to deal with the explicit requirements of Section 17 of the 1988 Act, which
entails a copy or replication to include an electronic storage of a copyrighted work.
e act further covers the formation of transient or incidental copies. is increases
the possibility that a court action in the United Kingdom would vary from the
result obtained in the United States at least in the rst instance. e inclusion of
storage dierentiates ISPs and Internet cache protocols (ICPs) from telephone pro-
viders, aligning them closer to publishers.
An ISP could attempt to argue a similarity to a librarian over that of a pub-
lisher, but this is unlikely to hold for most companies. Modern peer-to-peer net-
works have separated the network from software with a decentralized indexing
process in an attempt to defend themselves from an exposure to vicarious liability
as in Napster.
e success of modern peer-to-peer networks has resulted in the content indus-
try targeting those individual copyright infringers who use peer-to-peer networks to
disseminate or download copyrighted material. Existing peer-to-peer networks and
software provide an investigator with a sucient degree of information concerning
individuals who attach to the network to identify the degree of infringement and possi-
bly who is responsible. Recent advances to the P2P networking protocols have allowed
users to screen their identity, removing the ability for copyright holders to bring their
claims to court. As copyright infringement evolves, it will become more improbable to
expect a solution through prosecuting individual users and organizations.
What Is an “Electronic Contract”?
A contract is any agreement where there is oer, acceptance, and consideration.
Consideration may be money or anything of value.
e denition of e-commerce is the creation of a contract electronically. is
denition has developed in the courts over 30 years of commercial transactions
from the fax machine to email. It should come as a modest revelation that the law
of contract is relevant to the study of e-commerce and hence relates to the analysis
of computers.
In particular, email conversations and saved copies of contracts and associated
documents may often be used to validate compliance and are discoverable. is
means that the contracts, the associated les in their creation, and also any emails
discussing the contract may be called as evidence in a court of law.
Technological developments and the advent of the Internet have led to new
paradigms in international as well as local commercial activity. ese developments
have reduced the certainty of contractual negotiations, leaving a commonly held
belief that the law of oer and acceptance does not readily apply to such transac-
tions when conducted online.
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Dealings and transactions that formulate or initiate contractual negotiations are
not restricted to the written word. e law of oer and acceptance applies to new
technology in the same way that it applies to technological advances of the past.
In the past, international commercial transactions were generally restricted to
negotiations between commercial entities. e Internet has increased the scope
of business to consumer dealings, and even consumer-to-consumer transactions
across jurisdictional borders. For this reason, the formation of a contract using
the Internet creates segregation into two initial categories. ese categories include
those negotiations that
◾ Occur strictly within a single jurisdiction
◾ Involve multiple legal jurisdictions
Another concern focuses on the relationship of parties. Many Web-based trans-
action engines act as third parties during the process of oer and acceptance. e
interaction between the Web server and a third party, such as a payment clearing-
house, can complicate the formation of a contract. Because of the complications
of third-party interactions in e-commerce, it is necessary to determine the legal
standing of the third party. e third party could be a party to the contract, an
agent or one of the two contracting parties, or it may just be an ancillary facilitator
or medium, across which and through whom the contractual bargaining occurs.
Without legislation detailing the legal position of electronic contracts, the
process of oer, acceptance, and the terms of a contract using the Internet estab-
lishes itself by means of the general law of contract. Contractual dealings over the
Internet will continue (for the most part) in the same manner as for the negotiation
of terms of a contract in the physical world. Establishing oer, acceptance, and
the terms of a contract remains the same whether the form is in writing, orally, or
implied through the conduct of the parties in the same manner as existed prior to
the rise of e-commerce over the Internet.
To establish the formation of an electronic contract using the Internet, the gen-
eral common law of contract and the doctrine of international law are legitimate.
ere is little fundamental dierence between the process of oer and acceptance
in the “real world” and the Internet. Whether conducted in writing, orally, or
implied from the conduct of parties, contractual negotiations are formed in a simi-
lar manner whether completed by telephone, face to face, or over the Internet using
methods such as email or the Web.
An electronic contract has a twofold structure. ought of electronically, the
contract is a sequence of numbers and code saved to some electronic or magnetic
medium. Alternatively, the contract becomes perceptible through a transformation
of the numeric code when broadcast to a computer output device such as a printer
or screen. Legislation has satised this dichotomy, removing the uncertainty as to
whether an electronic contract can be regarded as being a contract in writing. An
electronic document is functionally equivalent to one on paper.
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When contrasting contractual principles, it is clear that where a contract is
not required to be in writing, little additional uncertainty could be created where
the contract is completed electronically. In fact, it is clear that electronic evidence
must hold greater weight than verbal evidence. What is not clear is the extent of
the weight attached to the various forms of electronic evidence. e strength of a
digital signature algorithm and the security surrounding the mechanisms used to
sign an electronic document will respectively inuence the weight associated with
any piece of electronic evidence.
Computer Crime
ere will always be those in the world who wish to gain some benet without actu-
ally paying for it. As a result, electronic law will inevitably intersect with certain
aspects of criminal law. Whether by an outsider or through the actions of disloyal
employees, crime is something that is likely to remain with us for the foreseeable
future. e Internet and digital networks create new vulnerabilities and methods
that criminals can exploit for their own gain.
Many existing types of crimes can be replicated and transacted with the aid of an
online environment. Further, novel new crimes designed to exploit the features and
advantages of the Internet and other digital networks have emerged and are likely
to continue to emerge in the future. Some examples of criminal activities that have
beneted from the advances in digital technology include the following:
◾ Computer break-ins or trespass including the unauthorized admission to the
whole or any element of a computer system without the right to do so
◾ Illegal interception without authority, created using technical methods of the non-
public communication of computer data to, from, or within a computer system
◾ Interference with or the damaging, deletion, deterioration, alteration, or sup-
pression of computer data without authorization
◾ Interfering with a system or the serious obstruction without authority of the
execution of a computer system through the input, transmission, damage,
deletion, deterioration, alteration, or suppression of any and all electronically
maintained data
◾ Possession of obscenity or prohibited pornography, e.g., child pornography
and bestiality
◾ Industrial espionage
◾ Harassment
◾ Electronic fraud, including email
◾ Web page defacements (cyber vandalism)
◾ eft of commercial documents
While none of these crimes is wholly new, the ease with which they may be com-
mitted and the diculty in capturing the oender have added a new dimension to
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